Glenn v. State

• Decision Date: 26 April 2005
• Docket Number: No. S05A0514.,S05A0514.
• Citation: 612 S.E.2d 478,279 Ga. 277
• Parties: GLENN v. The STATE.
• Court: Georgia Supreme Court

Page 478

612 S.E.2d 478

279 Ga. 277

GLENN v. The STATE.

No. S05A0514.

Supreme Court of Georgia.

April 26, 2005.

Appeal from the Superior Corut, Richmond County, Mulherin, Senior Judge.

Peter J. Flanagan, Augusta, for Appellant.

Daniel J. Craig, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Julie Amanda Adams, Asst. Atty. Gen., for Appellee.

CARLEY, Justice.

Early Glenn and four others were jointly indicted for several crimes, including malice murder of John Lambright and possession of a firearm during commission of a felony. Two of them pled guilty, and then testified for the State at the trial of Glenn and the remaining two co-defendants. The jury found Glenn guilty of murder and the weapons offense, for which the trial court imposed sentences of life imprisonment and a five-year term respectively. The trial court denied a motion for new trial, and Glenn appeals.¹

1. Glenn admitted killing the victim, but contended that the homicide was an accident. "Criminal intent is a question for the jury and may be inferred from conduct before, during and after the commission of the crime. [Cits.]" Ward v. State, 271 Ga. 648, 649(1), 520 S.E.2d 205 (1999). The proof that Lambright was shot three times is not consistent with an accidental shooting. Boyd v. State, 133 Ga.App. 431(1), 211 S.E.2d 387 (1974). The State also established the existence of a motive, in that Glenn believed the victim was instrumental in arranging for the co-defendants to be robbed of certain property they planned to sell to buy drugs. Immediately after the shooting, Glenn stated that "he just shot that damn boy," but did not claim that he did so accidentally. After he shot Lambright three times, Glenn did not report an accidental shooting to law enforcement or medical personnel, but instead fled the scene. Allen v. State, 260 Ga. 147(1), 390 S.E.2d 848 (1990), overruled on other grounds, Davis v. State, 269 Ga. 276, 280(3), 496 S.E.2d 699 (1998). When construed most strongly in support of the verdicts, the evidence is sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt of Glenn's guilt of malice murder and possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Glenn urges that his trial counsel was ineffective. To prevail on this claim, he must show that the attorney performed deficiently and that such deficient performance prejudiced the defense of the case. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel testified at the hearing on the motion for new trial, and explained the strategic decisions that he made in defending Glenn. Having heard counsel testify as to his trial tactics, the trial court found that Glenn failed to meet his burden of proving ineffectiveness. On appeal, this Court accepts the trial court's factual findings and credibility determinations, but independently applies the applicable legal principles to those facts so as to determine whether the constitutional right to effective representation was violated. Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).

a) The failure to request testing of Lambright's clothing and other evidence gathered at the crime scene is cited as an example of the attorney's deficient performance. The suggestion is that such testing would have established how far apart Glenn and the victim were when the shots were fired. However, the distance between them at the time of the shooting was not the material factor in the case. Regardless of how close they were, there was no dispute that the gun was fired three times while in Glenn's possession, and the dispositive inquiry was whether he fired the three shots intentionally or not. Counsel explained that he did not request testing because he did not know of any scientific test which would show that the gun, whether fired in close proximity to the victim or from some distance away, discharged intentionally or accidentally. Since counsel established that testing would not be a source of potentially exculpatory evidence he obviously was not deficient in failing to request it. See Hinely v. State, 275 Ga. 777, 781(2)(b), 573 S.E.2d 66 (2002).

b) In closing argument, the prosecutor asserted that Glenn was guilty of malice murder because he intentionally shot Lambright three times. Glenn contends that his defense counsel was remiss in failing to object to this argument on the ground that it lacked evidentiary support because the evidence showed that the homicide was an accident, not murder.

An attorney is entitled to argue all reasonable inferences arising from the evidence presented in the trial. Simmons v. State, 266 Ga. 223, 228(6)(b), 466 S.E.2d 205 (1996), overruled on other grounds, Wall v. State, 269 Ga. 506, 509(2), 500 S.E.2d 904 (1998). As discussed in Division 1, the evidence in this case, including the proof that the victim was shot three times, authorized a finding that the homicide was malice murder. Thus, the prosecutor was permitted to argue that the evidence showed that Glenn was guilty of that crime. See Daniels v. State, 276 Ga. 632, 634(6), 580 S.E.2d 221 (2003). Since an objection to the argument, if made, would have been meritless, the lawyer's failure to raise it does not constitute ineffective representation.

c) Glenn contends that an effective attorney would have sought to sever the trial from that of the two co-defendants, because their defenses were antagonistic. However, there...